Mr. Johnson of
Georgia (for himself, Ms.
Kilroy, Mr. Carnahan,
Mr. Ryan of Ohio,
Ms. Lee of California,
Mr. Ellison,
Mr. Doggett,
Ms. Fudge, and
Mr. Kennedy) introduced the following
bill; which was referred to the Committee
on Energy and Commerce, and in addition to the Committees on
Ways and Means and
Education and Labor, for
a period to be subsequently determined by the Speaker, in each case for
consideration of such provisions as fall within the jurisdiction of the
committee concerned

A BILL

To amend title XVIII of the Social Security Act to
improve prescription drug coverage under Medicare part D and to amend the
Public Health Service Act, the Employee Retirement Income Security Act of 1974,
and the Internal Revenue Code of 1986, to improve prescription drug coverage
under private health insurance, and for other purposes.

1.

Short title

This Act may be cited as the
Affordable Access to Prescription
Medications Act of 2009.

2.

Medicare part d
prescription drug plans

(a)

In
General

Section 1860D–2(b)(4) of the Social Security Act (42
U.S.C. 1395w–102(b)(4)) is amended by adding at the end the following new
subparagraph:

(E)

Additional
protections

(i)

In
general

Notwithstanding any other provision of this part,
effective for plan years beginning on or after January 1, 2011, a PDP sponsor
of a prescription drug plan and an MA organization offering an MA–PD plan
shall, with respect to any co-payment or coinsurance requirements applicable to
covered part D drugs under the plan, ensure that—

(I)

such required
co-payment or coinsurance does not exceed the base cost of the covered part D
drug (as determined by the Secretary);

(II)

such required
co-payment or coinsurance does not exceed $200 per month for any single covered
part D drug (30-day supply); and

(III)

such required
co-payment or coinsurance does not exceed, in the aggregate for all covered
part D drugs, $500 per month.

(ii)

Adjustments

The
amounts described in clauses (II) and (III) of clause (i) shall be annually
adjusted to reflect the average of the percentage increase or decrease in the
Consumer Price Index for all urban consumers (U.S. city average) and the
percentage increase or decrease in the medical care component of such Consumer
Price Index during the calendar year preceding the year for which the
adjustment is being
made.

.

(b)

Expansion of
Exceptions Process

Effective for plan years beginning on or after
January 1, 2011, the Secretary shall expand the formulary tier exception
request process under sections 423.560 through 423.636 of title 42, Code of
Federal Regulations (as in effect on the date of enactment of this Act), to
allow individuals enrolled in a prescription drug plan under part D of title
XVIII of the Social Security Act or an MA–PD plan under part C of such title to
request an exception for a specialty prescription drug to a plan’s designation
of a covered part D drug (as defined in section 1860D–2(e) of such Act (42
U.S.C. 1395w–102(e)) as a non-preferred prescription drug.

(c)

MedPAC Studies
and Reports

(1)

Study and report
on the medicare part D anti-discrimination clause

(A)

Study

The
Medicare Payment Advisory Commission shall conduct a study on various aspects
of the prescription drug program under part D of title XVIII of the Social
Security Act and, to the greatest extent practicable, the interaction of such
program with Medicare beneficiary access to covered drugs under part B of such
title. Such study shall include the following:

(i)

An
analysis of—

(I)

the use of
specialty tiers for covered part D drugs under prescription drug plans and
MA–PD plans; and

(II)

the effect of
such specialty tiers on access to care for Medicare beneficiaries.

(ii)

Consideration of
the mechanisms described in subparagraph (B) in the context of the provisions
of section 1860D–11(e)(2)(D) of the Social Security Act (42 U.S.C.
1395w–111(e)(2)(D)) (in this paragraph referred to as the Medicare part
D anti-discrimination clause).

(B)

Mechanisms
described

The following mechanisms are described in this
subparagraph:

(i)

The
use of specialty tiers for covered part D drugs under prescription drug plans
and MA–PD plans.

(ii)

The
application of segmented coinsurance or copayment structures to covered part D
drugs based on certain categories of such drugs or diagnoses.

(iii)

The utilization
of other differential benefit structures based on certain conditions and
Medicare beneficiaries under prescription drug plans and MA–PD plans, including
an analysis of the interaction between such utilization and the effects of such
utilization with the Medicare part D anti-discrimination clause.

(C)

Report

Not
later than 1 year after the date of enactment of this Act, the Medicare Payment
Advisory Commission shall submit to Congress a report containing the results of
the study conducted under subparagraph (A), together with recommendations for
such legislation and administrative action as the Commission determines
appropriate.

(D)

Revised
guidance

Based on the results of the study conducted under
subparagraph (A), the Secretary shall issue revised guidance regarding the use
of mechanisms described in subparagraph (B) to all PDP sponsors offering
prescription drug plans under part D of title XVIII of the Social Security Act
and Medicare Advantage organizations offering MA–PD plans under part C of such
title.

(2)

Study and report
on cost-sharing for prescription drugs under parts B and D

(A)

Study

The
Medicare Payment Advisory Commission shall conduct a study on cost-sharing for
prescription drugs under parts B and D of title XVIII of the Social Security
Act. Such study shall include an analysis of the impact of eliminating
cost-sharing for covered part D drugs for Medicare beneficiaries who—

(i)

incur annual
out-of-pocket cost-sharing after the initial coverage limit under section
1860D–2(b)(3) of such Act (42 U.S.C. 1395w–102) that exceeds 5 percent of the
income of the beneficiary (as determined under section 1860D–14(a)(3)(C) of
such Act (42 U.S.C. 1395w–114(a)(3)(C)); and

(ii)

do
not otherwise qualify for an income-related subsidy under section 1860D–14(a)
of such Act (42 U.S.C. 1395w–114(a)) or other extra help or cost-sharing
relief.

(B)

Report

Not
later than 6 months after the date of enactment of this Act, the Medicare
Payment Advisory Commission shall submit to Congress a report containing the
results of the study conducted under subparagraph (A), together with
recommendations for such legislation and administrative action as the
Commission determines appropriate.

(3)

Definitions

In
this section:

(A)

Covered part D
drug

The term covered part D drug has the meaning
given such term in section 1860D–2(e) of the Social Security Act (42 U.S.C.
1395w–102(e)).

(B)

MA–PD
plan

The term MA–PD plan has the meaning given such
term in paragraph (9) of section 1860D–41(a) of such Act (42 U.S.C.
1395w–151(a)).

(C)

Medicare
advantage organization

The term Medicare Advantage
organization has the meaning given such term in section 1859(a)(1) of
such Act (42 U.S.C. 1395w–28(a)(1)).

(D)

Pdp
sponsor

The term PDP sponsor has the meaning given
such term in paragraph (13) of such section 1860D–41(a).

(E)

Prescription
drug plan

The term prescription drug plan has the
meaning given such term in paragraph (14) of such section.

3.

Private health
insurance

(a)

Group Health
Plans

(1)

Public health
service act amendments

(A)

In
general

Subpart 2 of part A of title XXVII of the Public Health
Service Act is amended by adding at the end the following new section:

2708.

Provisions
relating to prescription drugs

(a)

In
General

A group health plan, and a health insurance issuer
offering group health insurance coverage, that provides coverage for
prescription drugs shall, with respect to any co-payment or coinsurance
requirements applicable to such drug coverage, ensure that—

(1)

such required
co-payment or coinsurance does not exceed the base cost of the prescription
drug (as determined by the Secretary);

(2)

such required
co-payment or coinsurance does not exceed $200 per month for any single
prescription drug (30-day supply); and

(3)

such required
co-payment or coinsurance does not exceed, in the aggregate for all
prescription drugs, $500 per month.

(b)

Adjustments

The
amounts described in paragraphs (2) and (3) of subsection (a) shall be annually
adjusted to reflect the average of the percentage increase or decrease in the
Consumer Price Index for all urban consumers (U.S. city average) and the
percentage increase or decrease in the medical care component of such Consumer
Price Index during the calendar year preceding the year for which the
adjustment is being made.

(c)

Notice

A
group health plan under this part shall comply with the notice requirement
under section 714(b) of the Employee Retirement Income Security Act of 1974
with respect to the requirements of this section as if such section applied to
such
plan.

.

(B)

Conforming
amendment

Section 2723(c) of such Act (42 U.S.C. 300gg–23(c)) is
amended by striking section 2704 and inserting sections
2704 and 2708.

(2)

Erisa
amendments

(A)

In
general

Subpart B of part 7 of subtitle B of title I of the
Employee Retirement Income Security Act of 1974 is amended by adding at the end
the following new section:

715.

Provisions
relating to prescription drugs

(a)

In
General

A group health plan, and a health insurance issuer
offering group health insurance coverage, that provides coverage for
prescription drugs shall, with respect to any co-payment or coinsurance
requirements applicable to such drug coverage, ensure that—

(1)

such required
co-payment or coinsurance does not exceed the base cost of the prescription
drug (as determined by the Secretary of Health and Human Services);

(2)

such required
co-payment or coinsurance does not exceed $200 per month for any single
prescription drug (30-day supply); and

(3)

such required
co-payment or coinsurance does not exceed, in the aggregate for all
prescription drugs, $500 per month.

(b)

Adjustments

The
amounts described in paragraphs (2) and (3) of subsection (a) shall be annually
adjusted to reflect the average of the percentage increase or decrease in the
Consumer Price Index for all urban consumers (U.S. city average) and the
percentage increase or decrease in the medical care component of such Consumer
Price Index during the calendar year preceding the year for which the
adjustment is being made.

(c)

Notice

A
group health plan under this part shall comply with the notice requirement
under section 714(b) with respect to the requirements of this section as if
such section applied to such
plan.

.

(B)

Table of
contents

The table of contents in section 1 of such Act is
amended by inserting after the item relating to section 714 the following new
item:

Sec. 715. Provisions relating to
prescription
drugs.

.

(3)

Internal revenue
code amendments

(A)

In
general

Subchapter B of chapter 100 of the Internal Revenue Code
of 1986 is amended by adding at the end the following new section:

9813.

Provisions
relating to prescription drugs

(a)

In
General

A group health plan, and a health insurance issuer
offering group health insurance coverage, that provides coverage for
prescription drugs shall, with respect to any co-payment or coinsurance
requirements applicable to such drug coverage, ensure that—

(1)

such required
co-payment or coinsurance does not exceed the base cost of the prescription
drug (as determined by the Secretary of Health and Human Services);

(2)

such required
co-payment or coinsurance does not exceed $200 per month for any single
prescription drug (30-day supply); and

(3)

such required
co-payment or coinsurance does not exceed, in the aggregate for all
prescription drugs, $500 per month.

(b)

Adjustments

The
amounts described in paragraphs (2) and (3) of subsection (a) shall be annually
adjusted to reflect the average of the percentage increase or decrease in the
Consumer Price Index for all urban consumers (U.S. city average) and the
percentage increase or decrease in the medical care component of such Consumer
Price Index during the calendar year preceding the year for which the
adjustment is being made.

(c)

Notice

A
group health plan under this part shall comply with the notice requirement
under section 714(b) of the Employee Retirement Income Security Act of 1974
with respect to the requirements of this section as if such section applied to
such
plan.

.

(B)

Clerical
amendment

The table of sections for such subchapter is amended by
adding at the end the following new item:

Sec. 9813. Provisions relating to
prescription
drugs.

.

(b)

Individual
Health Insurance

(1)

In
general

Part B of title XXVII of the Public Health Service Act is
amended by inserting after section 2752 the following new section:

2754.

Provisions
relating to prescription drugs

The provisions of section 2708 shall apply
to health insurance coverage offered by a health insurance issuer in the
individual market in the same manner as they apply to health insurance coverage
offered by a health insurance issuer in connection with a group health plan in
the small or large group
market.

.

(2)

Conforming
amendment

Section 2762(b)(2) of such Act (42 U.S.C.
300gg–62(b)(2)) is amended by striking section 2751 and
inserting sections 2751 and 2754.

(c)

Application to
FEHBP

The amendments made by this section shall apply to the
administration of chapter 89 of title 5, United States Code.

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